Citation Nr: 0635879
Decision Date: 11/20/06 Archive Date: 11/28/06
DOCKET NO. 02-13 076 ) DATE
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)
Received from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for a head scar.
2. Entitlement to service connection for a left shoulder
disability.
3. Entitlement to service connection for bilateral shin
splints.
4. Entitlement to an initial compensable rating for a low
back disorder for the period from January 19, 2000.
5. Entitlement to an initial rating in excess of 20 percent
for a right shoulder disability for the period from
January 19, 2000.
6. Entitlement to an initial rating in excess of 10 percent
for a nose scar for the period from January 19, 2000.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The veteran served on active duty from January 1995 to
January 2000.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2000 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida that denied entitlement to service
connection for a head scar, a left shoulder disability, and
bilateral shin splints as well as granted entitlement to
service connection for a low back disorder, right shoulder
impingement, right shoulder arthritis, and a nose scar. The
right shoulder disabilities were assigned separate 10 percent
ratings and the low back disorder and scar were assigned
noncompensable ratings. All disability ratings were
effective from January 19, 2000. In April 2002, the veteran
moved and his claims files were transferred to the RO in
Waco, Texas.
Thereafter, in a February 2005 rating decision, the RO
combined the veteran's right shoulder disabilities and
assigned a single 20 percent disability rating effective from
January 19, 2000. In a June 2005 rating decision, the RO
assigned the veteran's service connected nose scar a 10
percent disability rating effective from January 19, 2000.
As to the claim of entitlement to service connection for a
head scar, the Board notes that despite the veteran's April
2000 claim for a "lump anterior head secondary to a 11-96
boat accident," the RO characterized this issue as
entitlement to service connection for seborrheic dermatitis.
The Board finds that this characterization was in error.
Accordingly, in order to best reflect the veteran's intent
when filing this claim, the Board has recharacterized this
issue as it appears on the first page of this decision.
The United States Court of Appeals for Veterans Claims
(Court) has indicated that a distinction must be made between
a veteran's dissatisfaction with the initial rating assigned
following a grant of service connection (so-called "original
ratings"), and dissatisfaction with determinations on later-
filed claims for increased ratings. See Fenderson v. West,
12 Vet. App. 119, 125-26 (1999). Inasmuch as the rating
questions currently under consideration were placed in
appellate status by a notice of disagreement expressing
dissatisfaction with an original rating, the Board has
characterized these issues as set forth on the first page of
this decision.
Lastly, the Board notes that in August 2002 the veteran
requested a hearing before a Veterans Law Judge traveling to
the RO and in October 2002 he not only withdrew that request
but requested a video hearing before a Decision Review
Officer (DRO). Thereafter, in February 2005, the veteran
testified at a DRO video hearing.
FINDINGS OF FACT
1. Resolving reasonable doubt in the veteran's favor, the
record shows continuity of symptomatology from the time of
his November 1996 in-service treatment for a contusion on top
of the head and the August 2002 diagnosis of a scar secondary
to trauma.
2. The preponderance of the competent evidence is against
finding that the veteran has current problems with a left
shoulder disability or bilateral shin splints.
3. From January 19, 2000, the veteran's low back disorder
was manifested by muscle tenderness.
4. Since September 26, 2003, the veteran low back disorder
has not been manifested by forward flexion of the
thoracolumbar spine limited to 60 degrees or less, by the
combined range of motion of the thoracolumbar spine limited
to 120 degrees or less, or, muscle spasm or guarding severe
enough to result in an abnormal gait or abnormal spinal
contour such as scoliosis, reversed lordosis, or abnormal
kyphosis.
5. From January 19, 2000, the veteran's low back disorder
was not manifested by disability analogous to a moderate
intervertebral disc syndrome.
6. Since September 23, 2002, the veteran's low back disorder
has not been manifested by disability analogous to
incapacitating episodes that required bed rest prescribed by
a physician and treatment by a physician having a total
duration of at least two weeks during the past twelve months.
The disorder is not manifested by any sciatic nerve
paralysis.
7. Since January 19, 2000, the preponderance of the evidence
is against showing that the veteran's right shoulder
disability was productive of more than limitation of motion
of the major arm at shoulder level, even taking into account
the complaints of pain.
8. From January 19, 2000, the veteran's nose scar was not
manifested by severe disfigurement of the face.
9. Since August 30, 2002, the veteran's nose scar was not
manifested by visible or palpable tissue loss, gross
distortion or asymmetry of one feature or paired set of
features, or at least two characteristics of disfigurement.
CONCLUSIONS OF LAW
1. Resolving reasonable doubt in the veteran's favor, a head
scar was incurred during military service. 38 U.S.C.A.
§§ 1110, 5100, 5103, 5103A, 5107 (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.102, 3.159, 3.303 (2006).
2. A left shoulder disability was not due to or aggravated
by military service or an already service connected
disability. 38 U.S.C.A. §§ 1110, 5100, 5103, 5103A, 5107
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.307, 3.309, 3.310 (2006).
3. Bilateral shin splints were not due to or aggravated by
military service. 38 U.S.C.A. §§ 1110, 5100, 5103, 5103A,
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159,
3.303 (2006).
4. From January 19, 2000, the veteran has met the criteria
for a 10 percent rating for his low back disorder.
38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 &
Supp. 2005); 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003);
38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7 (2006).
5. The veteran has not met the criteria for a rating in
excess of 20 percent for a right shoulder disability at any
time during the pendency of his appeal. 38 U.S.C.A. §§ 1155,
5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.159, 3.326, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code
5201 (2006).
6. The veteran has not met the criteria for a rating in
excess of 10 percent for a nose scar at any time during the
pendency of his appeal. 38 U.S.C.A. §§ 1155, 5102, 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 4.118,
Diagnostic Code 7800 (2002); 38 C.F.R. §§ 3.102, 3.159,
3.321(a), 3.326, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7800
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
Under 38 U.S.C.A. § 5102 VA first has a duty to provide an
appropriate claim form, instructions for completing it, and
notice of information necessary to complete the claim if it
is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a
duty to notify the claimant of the information and evidence
needed to substantiate and complete a claim, i.e., existence
of a current disability; the degree of disability, and the
effective date of any disability benefits. The veteran must
also be notified to submit all evidence in his possession,
what specific evidence he is to provide, and what evidence VA
will attempt to obtain. VA thirdly has a duty to assist
claimants in obtaining evidence needed to substantiate a
claim. This includes obtaining all relevant evidence
adequately identified in the record, and in some cases,
affording VA examinations. 38 U.S.C.A. § 5103A.
In this case, there is no issue as to providing an
appropriate application form or completeness of the
application. Written notice provided in November 2003
correspondence fulfills the provisions of 38 U.S.C.A.
§ 5103(a) save for a failure to provide notice of the type of
evidence necessary to establish a disability rating and/or
effective dates for the disabilities on appeal. Thereafter,
the claims were readjudicated in the February 2005
supplemental statement of the case. The failure to provide
notice of the type of evidence necessary to establish a
disability rating and/or effective date for the disabilities
on appeal is harmless because, to the extent discussed below,
the preponderance of the evidence is against the appellant's
claims, and any questions as to the appropriate disability
rating and/or effective date to be assigned are moot.
Under 38 U.S.C.A. § 5103(a) notice must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits.
While VA failed to follow this sequence, since the June 2000
rating decision the content of the notices provided to the
appellant fully complied with the requirements of that
statute. The veteran has been afforded a meaningful
opportunity to participate in the adjudication of his claims,
to include the opportunity to present pertinent evidence.
Thus any error in the timing was harmless, the appellant was
not prejudiced, and the Board may proceed to decide this
appeal. Simply put, there is no evidence of any VA error in
notifying the appellant that reasonably affects the fairness
of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d
534, 549 (Fed. Cir. 1998).
Finally, VA has secured all available pertinent evidence and
conducted all appropriate development. Specifically, the RO
has obtained the veteran's service medical records as well as
all relevant and identified post-service medical records,
including treatment records and/or letters from Dwayne M.
Aboud, M.D., Joseph F. Wilson, D.C., and Gabriela Hunko,
M.D., as well as from the Orland and El Paso VA Medical
Centers. As to the rating claims as well as the claim for
entitlement to service connection for shin splints, the
veteran has been afforded at least one VA examination. There
is no pertinent evidence which is not currently part of the
claims files.
As to entitlement to service connection for a left shoulder
disability, the Board recognizes that the veteran was not
provided a VA examination. However, as will be more fully
explained below, the post-service record is negative for
complaints, diagnoses, or treatment related to the left
shoulder. Accordingly, VA had no duty to provide the veteran
with an examination and VA adjudication of this claim may go
forward without one. See 38 U.S.C.A. § 5103A(a)(2); 38
C.F.R. § 3.159(c)(4)(i)(A)-(C); Paralyzed Veterans of
America, et. al., v. Secretary of Veterans Affairs, 345 F.3d
1334 (Fed. Cir. 2003).
As to entitlement to service connection for a left shoulder
disability, the Board also notes that 38 C.F.R. § 3.310 was
amended effective October 10, 2006, but the veteran was not
notified of this change in law. However, under the old and
new regulation, the veteran required a current disability to
meet the criteria for service connection. Moreover, as will
be more fully explained in the below decision, he has no such
disability. Therefore, adjudication of his claim at this
time may go forward without first providing him notice of the
change in regulation because that lack of notice is harmless
error. ATD Corp.
Hence, VA has fulfilled its duty to assist the appellant in
the prosecution of his claims and adjudication of this appeal
may go forward.
The Service Connection Claims
The veteran argues that he sustained an injury to the top of
his head while in military service which caused a scar, was
diagnosed with shin splints while in military service and
continues to have a problem with them, and has a left
shoulder problem either due to military service or his
service connected right shoulder disability. It is requested
that the veteran be afforded the benefit of the doubt.
Service connection is warranted where the evidence of record
establishes that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
If a condition noted during service is not shown to be
chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b). In addition, service
connection may also be granted on the basis of a post-service
initial diagnosis of a disease, where the physician relates
the current condition to the period of service. In such
instances, however, a grant of service connection is
warranted only when "all the evidence, including that
pertinent to service, establishes that the disease was
incurred during service." 38 C.F.R. § 3.303(d). Pertinent
laws and regulations also provide that arthritis will be
presumed to have been incurred in-service if it manifested
itself to a compensable degree within one year after the
veteran's separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service
connection may also be granted where disability is
proximately due to or the result of already service-connected
disability. 38 C.F.R. § 3.310. Compensation is payable when
service-connected disability has aggravated a non-service-
connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995)
(en banc).
In deciding whether the appellant has a disability due to
service or an already service connected disability, it is the
responsibility of the Board to weigh the evidence, including
the medical evidence, and determine where to give credit and
where to withhold the same. Evans v. West, 12 Vet. App. 22,
30 (1998). In so doing, the Board may accept one medical
opinion and reject others. Id. At the same time, the Board
cannot make its own independent medical determinations, and
it must have plausible reasons, based upon medical evidence
in the record, for favoring one medical opinion over another.
Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Thus, the Board
must determine the weight to be accorded the various items of
evidence in this case based on the quality of the evidence
and not necessarily on its quantity or source.
As to entitlement to service connection for a head scar, the
Board notes that the veteran claims that he has a scar on the
top of his head due to an injury in-service. Tellingly,
November 1996 service medical records show his complaints and
treatment for a post trauma contusion to the top of his head
that required sutures. Moreover, Dr. Aboud opined in August
2002 that the veteran had scarring on the mid frontal scalp
that was probably due to past trauma.
Accordingly, because the post-November 1996 record is
negative for any other injury to the top of the veteran's
head, even though neither the December 1999 separation
examiner nor the May 2000 VA skin examiner noted a scar on
the top of his head despite the complaints of having a bump,
the Board finds that the evidence, both positive and
negative, is at least in equipoise. Under such
circumstances, and granting the veteran the benefit of any
doubt in this matter, the Board concludes that service
connection for a scar on the top of the head is warranted.
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
As to entitlement to service connection for a left shoulder
disability and bilateral shin splints, the Board notes that
service medical records show the veteran's complaints and
treatment for left shoulder problems, including pain and
instability, in April 1999 and October 1999 as well as a
diagnosis of bilateral shin splints in October 1995.
However, service medical records, including the December 1999
separation examination, were thereafter negative for
complaints, diagnoses, or treatment for a left shoulder
disability or shin splints. Moreover, the post-service
record is negative for complaints, diagnoses, or treatment
related to a left shoulder disability or shin splints. In
fact, as to the shin splints, May 2000 tibia and fibula X-
rays were negative for any evidence of shin splints and the
May 2000 VA examiner opined that any shin splints the veteran
had previously had had resolved.
Accordingly, the Board finds that the preponderance of the
evidence shows that the veteran's in-service problems with
his left shoulder and shin splints were transitory in nature
and have since resolved. Therefore, since a condition
precedent for direct service connection under 38 C.F.R.
§ 3.303 and secondary service connection under 38 C.F.R.
§ 3.310 is a current disability, the Board finds that
entitlement to service connection for a left shoulder
disability and bilateral shin splints must be denied.
38 U.S.C.A. § 1110.
The Higher Evaluation Claims
The veteran contends that his service-connected low back
disorder, right shoulder disability, and nose scar are
manifested by increased adverse symptomatology that entitles
him to higher evaluations. It is requested that the veteran
be afforded the benefit of the doubt.
Disability evaluations are determined by the application of a
schedule of ratings which is based, as far as can practicably
be determined, on the average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2006). Each
service-connected disability is rated on the basis of
specific criteria identified by diagnostic codes. 38 C.F.R.
§ 4.27 (2006). In cases where the original rating assigned
is appealed, consideration must be given to whether the
veteran deserves a higher rating at any point during the
pendency of the claim. Fenderson.
When evaluating loss in range of motion, consideration is
given to the degree of functional loss caused by pain.
DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of
musculoskeletal disorders rated on the basis of limitation of
motion requires consideration of functional losses due to
pain). In DeLuca, the Court explained that, when the
pertinent diagnostic criteria provide for a rating on the
basis of loss of range of motion, determinations regarding
functional losses are to be "'portray[ed]' (38 C.F.R.
§ 4.40) in terms of the degree of additional range-of-motion
loss due to pain on use or during flare-ups." Id. at 206.
The Low Back Disorder
As noted above, a June 2000 rating decision granted
entitlement to service connection for a low back disorder and
rated it as noncompensably disabling under 38 C.F.R. § 4.71a,
Diagnostic Code 5295 (low back strain), effective from
January 19, 2000. Thereafter, in the February 2005
supplemental statement of the case, the RO conceded that the
veteran's low back disorder is also ratable as intervertebral
disc syndrome.
Since the veteran filed his claim there have been a number of
changes in the criteria for rating musculoskeletal
disabilities under 38 C.F.R. § 4.71a. The new criteria for
rating intervertebral disc syndrome became effective
September 23, 2002. See 67 Fed. Reg. 54349 (Aug, 22, 2002).
Further, additional regulatory changes for rating all other
back disorders became effective September 26, 2003, but these
did not change the way intervertebral disc syndrome was
rated, except for renumbering Diagnostic Code 5293 as
Diagnostic Code 5243. See 68 Fed. Reg. 51454-56 (Aug. 27,
2003). 69 Fed. Reg. 32449 (June 10, 2004) corrected a
clerical error in the Federal Register publication of
August 27, 2003.
The supplemental statements of the case issued in February
2005 notified the veteran of the new rating criteria.
Accordingly, adjudication of his claim may go forward. See
Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
However, given the change in law, while VA may consider the
old criteria for rating an intervertebral disc syndrome for
the period from January 19, 2000, it may only consider the
new criteria when rating an intervertebral disc syndrome from
September 23, 2002. Kuzma v. Principi, 341 F.3d 1327 (Fed.
Cir. 2003). Likewise, VA may consider the old criteria for
rating all other back disorders for the period from
January 19, 2000, but may only consider the new criteria for
rating all other back disorders from September 26, 2003.
Kuzma.
All Other Back Disorders-The Old Criteria
From January 19, 2000, the veteran will only be entitled to
an higher evaluation under potentially applicable Diagnostic
Codes if he has a fracture with cord involvement requiring
long leg braces or being bedridden (100 percent) or a
fracture of the vertebra without cord involvement but leading
to abnormal mobility requiring a neck brace (60 percent)
(Diagnostic Code 5285); complete ankylosis of the spine at a
favorable angle (60 percent) (Diagnostic Code 5286);
ankylosis of the lumbar spine at a favorable angle (40
percent) or ankylosis of the lumbar spine at an unfavorable
angle (50 percent) (Diagnostic Code 5289); slight limitation
in the range of motion of the lumbar spine (10 percent),
moderate limitation in the range of motion of the lumbar
spine (20 percent) or severe limitation in the range of
motion of the lumbar spine (40 percent) (Diagnostic
Code 5292); or lumbosacral strain with characteristic pain on
motion (10 percent), lumbosacral strain with muscle spasm on
extreme forward bending, loss of lateral spine motion in a
standing position (20 percent), or lumbosacral strain with
listing of the whole spine to opposite side, positive
Goldthwaite's sign, marked limitation of forward bending in
standing position, loss of lateral motion with osteo-
arthritic changes, or narrowing or irregularity of joint
space, or some of the above with abnormal mobility on forced
motion (40 percent) (Diagnostic Code 5295.). 38 C.F.R.
§ 4.71a (2002).
As Diagnostic Code 5295, a September 2003 letter from Dr.
Wilson reported that the veteran had problems with low back
pain with restricted range of motion due to mild muscle
spasms and myofascitis in the lumbar posterior paraspinal
musculature. Moreover, the May 2000 VA examiner opined that
the veteran had some tenderness along the paraspinous
muscles. And, the March 2004 VA examiner opined that the
veteran had mild tenderness to deep palpation in the left
lower aspect of his low back. Accordingly, taking into
account the factors identified in 38 C.F.R. §§ 4.40, 4.45
(2006) and the Court's holding in DeLuca, as well as granting
the veteran the benefit of any doubt in this matter, the
Board finds that he meets the criteria for a 10 percent
rating under 38 C.F.R. § 4.71a, Diagnostic Code 5295.
38 C.F.R. § 3.102. This is true throughout the period of
time during which his claim has been pending. Fenderson.
As to whether the veteran is entitled to a higher evaluation
at any time during the pendency of the appeal, the Board
notes that there is no suggestion in the record that he has a
service connected fractured lumbar vertebra. See, e.g., VA
examinations and x-ray dated in May 2000, October 2002, and
March 2004. There being no demonstrable service connected
vertebral deformity, a 10 percent rating may not be added to
any rating. Furthermore, the service connected low back
disorder did not include cord involvement requiring long leg
braces. Additionally, at the May 2000, October 2002, and
March 2004 VA examinations the veteran was able to move his
lumbosacral spine, and hence, there was no evidence of
ankylosis. Consequently, a higher evaluation is not
warranted for the veteran's service-connected low back
disorder under Diagnostic Codes 5285, 5289 at any time from
January 19, 2000. 38 C.F.R. § 4.71a (2003); Fenderson.
As to limitation of motion under Diagnostic Code 5292 and
lumbosacral strain under Diagnostic Code 5295, VA and private
treatment records are negative for complaints, diagnoses, or
treatment related to the lumbosacral spine except for the
September 2003 letter from Dr. Wilson. Moreover, while Dr.
Wilson reported that the veteran had problems with low back
pain, restricted range of motion, and muscle spasms, as noted
above, neither the May 2000, August 2002, or the March 2004
VA examiner saw objective evidence of any of these problems.
In fact, after the veteran complained of intermittent back
pain and muscle spasms, the May 2000 VA examiner opined that,
except for a problem with some tenderness along the
paraspinous muscles, the lumbosacral spine examination was
normal with full extension and flexion, being able to heel
and toe walk without difficulty, negative straight leg
raising and clonus, and negative X-rays. Likewise, at the
August 2002 VA examination, after noting the veteran's
complaints of low back pain approximately once a month for
one day precipitated by heavy lifting, lumbar motion was as
follows: forward flexion to 90 degrees; backward extension to
30 degrees; left lateral flexion to 35 degrees; right lateral
flexion to 40 degrees; and left and right rotation to 45
degrees. (Normal range of motion of the lumbosacral spine is
as follows: forward flexion to 90 degrees; backward extension
to 30 degrees; left and right lateral flexion to 30 degrees;
and left and right rotation to 30 degrees. See, for example,
38 C.F.R. § 4.71a, Plate V (2006)) It was thereafter opined
that the veteran had no pain with lumbosacral spine motion,
straight leg raises were negative, and there were no
weakness, tenderness, fixed deformity, or posture
abnormality. X-rays were also within normal limits.
Similarly, in March 2004, the veteran complained of low back
pain and muscle spasms approximately once or twice a month.
However, on examination, lumbar motion was as follows:
forward flexion to 90 degrees; backward extension to 35
degrees; left and right lateral flexion to 40 degrees; and
left and right rotation to 35 degrees. Moreover, there were
no muscle spasms, muscle atrophy, muscle wasting, or sensory
deficits.
While Dr. Wilson opined that the veteran's low back disorder
were manifested by limitation of motion and muscle spasms,
the Board assigns more evidentry weight to the examination
results found at the three VA examiners because Dr. Wilson
did not report the reduced range of motion of the veteran's
back and at three VA examiners, spanning a period of almost
four years, found no objective medical evidence of limitation
of motion or muscle spasms. Evans. Moreover, no examiner
has characterized the veteran's lumbosacral spine as having
"moderate" lost motion. See 38 C.F.R. § 4.71a, Diagnostic
Code 5292. Accordingly, because the record does not show any
lost motion, much less "moderate" limitation of motion of
the lumbosacral spine, or lost motion with muscle spasms, the
Board finds that a rating in excess of 10 percent is not
warranted under either Diagnostic Code 5292 or Diagnostic
Code 5295 for the period from January 19, 2000. 38 C.F.R.
§ 4.71a (2003); Fenderson.
As to pain on use, Dr. Wilson reported that the veteran had
back pain with muscle spasms, the May 2000 VA examiner opined
that the veteran had some tenderness along the paraspinous
muscles, and the March 2004 VA examiner opined that the
veteran had mild tenderness to deep palpation in the left
lower aspect of his low back. However, at the VA
examinations, the veteran denied taking any medication for
his pain and on examination there were no limitation of
motion, muscle spasms, or weakness. Moreover, at the VA
examinations painful pathology was not objectively confirmed
by such signs as disuse atrophy of the low back or lower
extremities. Therefore, even when considering functional
limitations due to pain and the other factors identified in
38 C.F.R. §§ 4.40, 4.45, the Board does not find that the
veteran's functional losses equated to debility contemplated
by the 20 percent rating for a limitation of lumbar motion
under Diagnostic Code 5293 or a lumbosacral strain under
Diagnostic Code 5295, for the period from January 19, 2000.
38 C.F.R. § 4.71a (2003); DeLuca; Fenderson.
All Other Back Disorders-The New Criteria
Effective September 26, 2003, the veteran is entitled to a
rating in excess of 10 percent for his low back disorder if
it is manifested by forward flexion of the thoracolumbar
spine greater than 30 degrees but not greater than 60
degrees; the combined range of motion of the thoracolumbar
spine not greater than 120 degrees; muscle spasm or guarding
severe enough to result in an abnormal gait; or abnormal
spinal contour such as scoliosis, reversed lordosis, or
abnormal kyphosis. 38 C.F.R. § 4.71a (2006).
Initially, the Board notes that the clinical evidence of
record for this time period does not show evidence of muscle
spasm, guarding, or abnormal spinal contour. See VA
examination dated in March 2004. Therefore, a rating in
excess of 10 percent cannot be assigned under this portion of
38 C.F.R. § 4.71a for the period effective September 26,
2003. Fenderson.
Next, as to whether the low back disorder results in forward
flexion of the thoracolumbar spine reduced to 60 degrees or
less or the combined motion of the thoracolumbar spine
reduced to 120 degrees or less, March 2004 VA range of motion
studies showed forward flexion to 90 degrees and the combined
motion of the thoracolumbar spine of 200 degrees (i.e.,
forward flexion to 90 degrees; backward extension to 35
degrees; left and right lateral flexion to 40 degrees; and
left and right rotation to 35 degrees). Therefore, based on
this objective clinical finding, the veteran's low back
disorder does not result in sufficiently reduced limitation
of motion to warrant a rating in excess of 10 percent since
September 26, 2003. 38 C.F.R. § 4.71a (2006); Fenderson.
As to pain on use, the March 2004 VA examiner reported that,
while there were no signs of fatigue or change in flexion of
the lower back with repetitive motion, it was nonetheless
opined that flare-ups would cause approximately a 10 percent
reduction in the veteran's flexion. Thereafter, it was also
opined that that there was no functional impairment to the
veteran from his low back disorder. Moreover, examination
did not reveal muscle atrophy, muscle wasting, or muscle
spasms. Therefore, even taking into account functional
limitations due to pain and other factors identified in
38 C.F.R. §§ 4.40, 4.45, the Board finds that the forward
flexion seen on examination is not limited to 60 degrees or
less and the combined range of motion of the thoracolumbar
spine is not limited to 120 degrees or less. Indeed, given
the additional 10 percent loss in motion the March 2004 VA
examiner opined that the veteran would experience with flare-
ups forward flexion would only be limited to 81 degrees and a
limitation of the combined range of motion of the
thoracolumbar spine would only be limited to 191 degrees.
Therefore, the Board does not find that the veteran's
functional losses equated to debility contemplated by the 20
percent rating for a limitation of lumbar motion under
38 C.F.R. § 4.71a (2006) for the period from September 26,
2003. DeLuca; Fenderson.
Intervertebral Disc Syndrome-The Old Criteria
From January 19, 2000, the veteran is entitled to a rating in
excess of 10 percent for his low back disorder if its
manifested by problems compatible with intervertebral disc
syndrome with "moderate" symptoms (defined as recurring
attacks) (20 percent), problems compatible with
intervertebral disc syndrome with "severe" symptoms
(defined as recurring attacks with only intermittent relief)
(40 percent), or problems compatible with intervertebral disc
syndrome with pronounced symptoms (60 percent) (Diagnostic
Code 5293). 38 C.F.R. § 4.71a (2002).
In this regard, the evidence does not disclose that the
veteran's symptoms were ever "moderate" in severity. Id.
Specifically, while Dr. Wilson in September 2002 reported
that the veteran had problems with low back pain with
restricted range of motion due to mild muscle spasms and
myofascitis in the lumbar posterior paraspinal musculature,
neither this letter nor any of the other VA and private
treatment records show complaints and/or treatment for
adverse neurological symptomatology. Similarly, at the May
2000 VA joints' examination, the veteran denied experiencing
any problems with radicular symptoms, bladder dysfunction, or
bowel dysfunction. Moreover, sensory examination and
reflexes were normal and back extension and flexion was full.
His only adverse symptomatology was some tenderness along the
paraspinous muscles. Likewise, at the August 2002 VA
examination, the veteran did not complain of any
radiculopathy and examination revealed normal strength,
reflexes, and sensation in the lower extremities. It was
also opined that the veteran had no pain with lumbosacral
spine motion studies. Furthermore, at the March 2004 VA
examination, the veteran once again denied having any
problems with radiculopathy and examination revealed no gross
sensory deficit. Reflexes and ankle jerks were 2/4 with no
abnormality.
Given the lack of adverse neurological symptomatology seen in
the record, even when considering functional limitation due
to pain and other factors identified in 38 C.F.R. §§ 4.40,
4.45, the Board does not find that the veteran's functional
losses equate to the debility contemplated by the 20 percent
rating for an intervertebral disc syndrome under the old
rating criteria for the period from January 19, 2000.
38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). DeLuca;
Fenderson.
Intervertebral Disc Syndrome-The New Criteria
Effective September 23, 2002, the veteran is entitled to a
rating in excess of 10 percent for his low back disorder if
it's manifested by problems compatible with intervertebral
disc syndrome with incapacitating episodes having a total
duration of at least two week but less than four weeks during
the past twelve months. 38 C.F.R. § 4.71a (2006). An
incapacitating episode is defined as a period of acute signs
and symptoms due to intervertebral disc syndrome that
requires bed rest prescribed by a physician and treatment by
a physician. Id.
In this case, the records dating since September 23, 2002,
does not show that a physician has ever ordered bed rest due
to his low back disorder. Therefore, because the record for
the period since September 23, 2002, is negative for any
evidence of physician ordered bed rest, the claim for an
increased rating must be denied. Id.
As to 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 2, the
record does not show, and the veteran does not complain, of
radiculopathy. Therefore, a discussion of whether the
veteran is entitled to a separate evaluation for his low back
disorder because of sciatic nerve impairment is unnecessary.
38 C.F.R. §§ 4.71a, 4.123, 4.124, 4.124a, Diagnostic
Codes 5243, 8520, 8620, 8720 (2006); Esteban v. Brown,
6 Vet. App. 259, 261 (1994).
Other Back Concerns
Each of the ways by which the back is ratable, other than
some of those described in 38 C.F.R. § 4.71a, Diagnostic Code
5285 (2003), contemplates limitation of motion. See
VAOPGCPREC 36-97; 63 Fed. Reg. 31262 (1998). Therefore,
assigning separate ratings on the basis of both limitation of
motion and other symptoms, such as those set forth in
Diagnostic Code 5293/5243, would be inappropriate. 38 C.F.R.
§ 4.14 (2006).
The Right Shoulder Disability
As indicated above, a June 2000 rating decision granted
service connection for right shoulder disabilities and rated
them as 10 percent disabling under 38 C.F.R. § 4.71a,
Diagnostic Code 5203 (impairment of the clavicle or scapula)
and Diagnostic Code 5201 (limitation of motion of the arm),
effective from January 19, 2000. Thereafter, the February
2005 rating decision combined the veteran's service connected
right shoulder disabilities and rated the one disability as
20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic
Code 5010 (arthritis)-5201.
Because VA examinations reported that the veteran is right-
hand dominant, because he demonstrates some range of shoulder
motion, because there is no evidence of malunion of the
humerus or other humeral impairment, because he is already
receiving the maximum rating possible for clavicle or scapula
impairment, and because there is no evidence of neurological
impairment of the right shoulder (see VA examinations dated
in May 2000, October 2002, and March 2004; right shoulder x-
rays dated in May 2000 and October 2002), a higher schedular
evaluation is not warranted for his major right shoulder
disability under Diagnostic Codes 5200, 5202, 5203, or 8519
at any time from January 19, 2000. 38 C.F.R. §§ 4.71a,
4.124a (2006); Fenderson.
Nonetheless, under 38 C.F.R. § 4.71a, Diagnostic Codes 5201,
a higher schedular evaluation is not warranted for his major
right shoulder disability if there is limitation of motion of
the arm midway between side and shoulder level (30 percent)
or limitation of motion of the arm to 25 degrees from the
side (40 percent).
With the above criteria in mind, when examined by VA in May
2000 it was opined that right shoulder range of motion was
full. Thereafter, at the August 2002 VA examination, right
shoulder motion was as follows: flexion to 180 degrees,
abduction to 170 degrees, internal rotation to 80 degrees,
and external rotation to 90 degrees. Subsequently, at the
March 2004 VA examination, right shoulder motion was as
follows: forward elevation to 170 degrees, abduction to 180
degrees, and external rotation to 90 degrees.
Regulations define the normal range of motion for the
shoulder as forward flexion from 0 to 180 degrees, abduction
from 0 to 180 degrees, external rotation to 90 degrees, and
internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I
(2006). Therefore, on objective examination, it cannot be
said that the motion of the right arm is limited to midway
between side and shoulder level or less. Hence, a higher
rating is not warranted under 38 C.F.R. § 4.71a, Diagnostic
Code 5201. This is true throughout the period of time during
which his claim has been pending. Fenderson.
As to pain on use, the record shows the veteran's periodic
complaints and/or treatment for right shoulder pain. See VA
treatment records dated in May 2000, June 2000, August 2000,
November 2000, April 2002, and October 2002. Moreover, at
the May 2000, October 2002, and March 2004 VA examinations,
the veteran complained of right shoulder pain. However,
except for the November 2000 record, the VA treatment records
were uniform in reporting that the right shoulder had full
range of motion. Likewise, while the May 2000 VA examiner
noted that the veteran had pain in the right shoulder joint,
some muscle weakness, and pain at the extremes of the range
of motion testing, it was nonetheless opined that range of
motion was full. Likewise, when examined in October 2002,
while it was opined that the veteran had right shoulder pain
on motion, it was also opined that there was no right
shoulder tenderness, effusion, heat, muscle atrophy, loss of
strength, or deformity. Similarly, when examined in March
2004, it was opined that pain started in the right shoulder
as follows: forward elevation to 100 degrees, abduction to
100 degrees, and external rotation to 90 degrees.
Thereafter, while right arm strength was slightly reduced at
5-/5 due to pain, it was also opined that there was no muscle
wasting or atrophy, redness, or swelling. It was also opined
that he had good strength in his right hand. Next, it was
opined that during acute flare-ups, the range of motion of
the veteran's right shoulder would be reduced by
approximately 40 percent.
In summary, VA examiners were uniform in being negative for
objective evidence of right shoulder swelling, deformity, or
atrophy. Moreover, the March 2004 VA examiner's findings
that the right arm would not be limited to midway between
side and shoulder level or less given the fact that, even
with pain, forward elevation is to 100 degrees, abduction is
to 100 degrees, and external rotation is to 90 degrees and a
40 percent reduction in shoulder movement would only cause
forward elevation to be limited to 102 degrees, abduction to
be limited to 108 degrees, and external rotation to be
limited to 54 degrees. 38 C.F.R. § 4.71a, Diagnostic
Code 5201.
Therefore, the Board finds that even when considering
functional limitations due to pain and the other factors
identified in 38 C.F.R. §§ 4.40, 4.45, the veteran's
functional losses do not equate to the debility contemplated
by the 30 percent rating for limitation of motion under
Diagnostic Code 5201. 38 C.F.R. § 4.71a. This is true
throughout the period of time during which his claim has been
pending. Fenderson.
The Nose Scar
As indicated above, a June 2000 rating decision granted
service connection for a nose scar and rated it as non
compensable 38 C.F.R. § 4.118, Diagnostic Code 7805 (other
scars), effective from January 19, 2000. Thereafter, the
June 2005 rating decision granted a 10 percent disability
rating under 38 C.F.R. § 4.114, Diagnostic Code 7804
(superficial and painful scars).
Since the veteran filed his claim, the criteria for rating
skin disabilities under 38 C.F.R. § 4.118 have changed. The
new criteria for rating skin disabilities became effective
August 30, 2002. See 67 Fed. Reg. 49590 (2002).
The supplemental statements of the case issued in April 2003
notified the veteran of the new rating criteria.
Accordingly, adjudication of his claim may go forward. See
Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
However, given the change in law, while VA may consider the
old criteria for rating skin disabilities for the period from
January 19, 2000, it may only consider the new rating
criteria when rating skin disabilities from August 30, 2002.
Kuzma.
The Facts
At the May 2000 VA skin examination, the veteran had a 2
centimeter (cm) oblique scar on the superior bridge of the
nose.
Similarly, at the August 2002 VA examination, the veteran had
a linear and skin-colored scar over the superior bridge on
the nose with minimal elevation. It was also opined that
there were no problems with tenderness, adhesion, ulceration,
tissue loss, inflammation, edema, keloid formation, or loss
of function.
Furthermore, at the December 2004 VA examination, the
veteran's scar was on the superior bridge of the nose and
measured approximately 0.75 cm in length by approximately
0.25 cm in width. It was slightly brown in color. It was
opined that there were no gross distortion or asymmetry due
to the scar and the scar was only "very, very slightly
disfiguring." Thereafter, it was opined that the scar was
not manifested by visible or palpable tissue loss, adherent
to underlying tissue, abnormal skin texture, surface contour
being elevated or depressed, or the skin being indurated and
inflexible.
Scars-The Old Criteria
From January 19, 2000, given the 10 percent disability rating
already assigned the veteran's facial scar, under old
38 C.F.R. § 4.118, he is only entitled to a higher, 30
percent, evaluation for disfiguring scars of the head, face
or neck, if it is a severe disfiguring scar, especially one
that produces a marked and unsightly deformity of eyelids,
lips, or auricles. 38 C.F.R. § 4.118, Diagnostic Code 7800
(2002).
Given the above evidence, which includes the December 2004 VA
examiner's opinion that the scar was only "very, very
slightly disfiguring," the Board finds that the overwhelming
weight of the evidence as reflected at the three VA
examinations shows that the veteran's nose scar is not
severely disfiguring and a higher evaluation is not wanted
under Diagnostic Code 7800. 38 C.F.R. § 4.118 (2002). This
is true throughout the period of time during which his claim
has been pending. Fenderson.
Scars-The New Criteria
Effective August 30, 2002, given the 10 percent disability
rating already assigned the veteran's facial scar, under new
38 C.F.R. § 4.118, he is only entitled to a higher, 30
percent, evaluation for disfiguring scars of the head, face
or neck, if it is manifested by visible or palpable tissue
loss and either gross distortion or asymmetry of one feature
or paired set of features (nose, chin, forehead, eyes
(including eyelids), ears (auricles), cheeks, lips), or; with
two or three characteristics of disfigurement. 38 C.F.R.
§ 4.118, Diagnostic Code 7800 (2006).
Note 1 to 38 C.F.R. § 4.118, Diagnostic Code 7800 list the
eight characteristics of disfigurement as follows: scar 5 or
more inches (13 or more cm.) in length; scar at least one-
quarter inch (0.6 cm.) wide at widest part; surface contour
of scar elevated or depressed on palpation; scar adherent to
underlying tissue; skin hypo-or hyper-pigmented in an area
exceeding six square inches (39 sq. cm.); skin texture
abnormal (irregular, atrophic, shiny, scaly, etc.) in an area
exceeding six square inches (39 sq. cm.); underlying soft
tissue missing in an area exceeding six square inches (39 sq.
cm.); and skin indurated and inflexible in an area exceeding
six square inches (39 sq. cm.).
Given the above, which includes no evidence that the scar is
manifested by tissue loss, gross distortion or asymmetry of
one feature or paired set of features, or two or three
characteristics of disfigurement, the Board finds that the
overwhelming weight of the evidence as reflected at the
August 2002 and December 2004 VA examinations shows that the
veteran's nose scar does not meet the criteria for a higher
evaluation for a disfiguring scar of the face and a higher
evaluation is not wanted under Diagnostic Code 7800.
38 C.F.R. § 4.118 (2006). This is true since August 30,
2002. Fenderson.
Conclusion
In reaching the above conclusions, the Board has not
overlooked the veteran's and his representative's written
statements to the RO, the claimant's statements to VA
examiners, or the hearing testimony. While lay witnesses are
competent to describe experiences and symptoms that result
therefrom, because lay persons are not trained in the field
of medicine, they are not competent to provide medical
opinion evidence as to the diagnosis of a current disability
or the current severity of a service connected disability.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).
Therefore, the veteran's and his representative's statements
addressing these issues are not probative evidence as to the
issues on appeal.
The Board also considered the doctrine of reasonable doubt.
However, except to
the extent indicated above, the preponderance of the evidence
is against all the veteran's claims. Gilbert v. Derwinski,
1 Vet. App. 49 (1990). Accordingly, except to the extent
indicated, the claims are denied.
ORDER
Service connection for a head scar is granted.
Service connection for a left shoulder disability is denied.
Service connection for bilateral shin splints is denied.
Effective January 19, 2000, a 10 percent rating for the low
back disorder is granted, subject to the laws and regulations
governing the award of monetary benefits
Entitlement to a rating in excess of 20 percent for a right
shoulder disability, at any time during the pendency of his
appeal, is denied.
Entitlement to a rating in excess of 10 percent for a nose
scar, at any time during the pendency of his appeal, is
denied.
______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs